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In Big Ruling, SCOTUS Endorses Freedom Over Compulsion
The Supreme Court upheld the First Amendment Monday, ruling in favor of Jack Phillips, owner of Masterpiece Cakes in Lakewood, CO. In a narrowly crafted 7-2 opinion, the court ruled that the Colorado Civil Rights Commission demonstrated hostility to Phillips’s religious beliefs.
Although Justice Anthony Kennedy’s majority opinion was full of the woke posturing we’ve come to expect, had this case gone the other way, religious liberty would have suffered greatly. This ruling was a necessary brushback pitch to overreaching bureaucrats trying to stamp out diversity of thought and belief.
It would be ludicrous for government to force Jewish artists to create paintings celebrating Easter or force atheist artists to promote Hindu beliefs. Either would be as offensive as forcing Muslim bakers to cater a pork barbecue.
The same goes for Colorado insisting that a traditional Christian create cakes celebrating weddings that go against his beliefs. In fact, there are all sorts of occassions Phillips won’t endorse.
“He has declined to participate in Halloween,” his attorney said. “He doesn’t do cakes that are anti-American. Jack has even declined cakes that celebrate divorce. He has declined to do cakes that would be offensive or derogatory to individuals — including LGBT individuals.”
Of course, there might be a bakery down the street from Phillips that will make cakes supporting all those things. That’s how freedom works. But no artist or baker should be compelled by the government to create against his will.
Lost in these broad fights of the culture war are the individuals affected. You can learn more about Jack Phillips here:
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Published in Law, Religion & Philosophy
I did a quick read of the decision and the concurring and dissenting opinions. It is complicated. It is not accurate to view it as a 7-2 victory for freedom of religion or freedom of expression.
Kennedy’s majority opinion was joined by 5 others (Roberts, Breyer, Alito, Kagan, Gorsuch). That appears to mean 6 Justices in favor of the baker. However, the focus was on the biased reasoning of the lower tribunals.
Thomas concurred in part and concurred in the judgment, in an opinion joined by Gorsuch. It wasn’t clear how much he “concurred in part” in the majority opinion. Thomas’s opinion was strongly in favor of the baker. That appears to mean 7 Justices in favor of the baker.
Kagan’s concurring opinion (joined by Breyer) made it clear that their problem was the biased reasoning of the Colorado commission and appellate court, not a problem with the outcome. Kagan and Breyer found a perfectly legitimate argument for ruling against the baker, but this wasn’t the argument made by the lower tribunals, and the reasoning of the lower tribunals was biased against religion. This appears to mean only
45 Justices in favor of the baker.Gorsuch’s concurring opinion (joined by Alito) responded to Kagan’s, arguing that she was wrong, and that the baker should have won even had the lower tribunals not been obviously biased.
Sotomayor filed a dissent, joined by Ginsburg.
My count is as follows:
I’m not making up the part about obvious anti-religious bias of the Colorado tribunals. Even Kagan’s concurring opinion describes them as “infected by religious hostility or bias.”
The majority opinion by Kennedy explicitly punts on the issue of the rule applicable in the absence of obvious anti-religious bias, stating:
The concern for me is how does this affect the Civil rights act? Is a bakery a “Public Accomidation” (which is the correct term, as I understand)
I believe that Kagan (and Breyer, joining) are being somewhat cagey and disingenuous here, though for what reason I don’t really know. The obvious answer is to pave the way for the next decision per Kagan’s roadmap, but I’m not convinced it was necessary for either to fully join in the majority opinion, which now binds them despite Kagan’s concurrence.
I haven’t read speculation on this, but shouldn’t Phillips expect a visit from a same-sex couple–like, today.
Yes, it is. It serves the public.
I don’t think that Kagan and Breyer are being cagey and disingenuous. They were straightforward about their position, which is generally on the “anti-baker” side, so long as the lower tribunals keep their mouths shut about hostility to religion.
It is Kennedy who is being cagey. I won’t go so far as to say disingenuous. I also wouldn’t read too much into Roberts’s joinder in Kennedy’s argument without joining in any of the concurring opinions, as this is explained by Roberts essentially wanting to stay on Kennedy’s good side in a future case.
My impression is that Kennedy would have sided with Kagan and Breyer in ruling against the baker, if there had not been open anti-religious bias in the record of the lower tribunals. This allowed him to craft a narrow decision that puts off the fundamental decision for another day.
If I’m right in my read of Kennedy, this would mean that there is a 5-4 SCOTUS majority against the baker, as long as the lower tribunals don’t put any explicitly anti-religious rhetoric into the record.
My impression is that Roberts would be inclined to come out on the pro-baker side, but is having trouble reconciling this with the “neutral law of general application” principle of Employment Division v. Smith. Smith was a Scalia opinion in which Kennedy joined, so it’s not a right-left divide. It’s a tough question of the extent to which a general law has to make a religious exception. (The obvious extreme case is: does a religion practicing human sacrifice get an exception to the murder statute?)
There are at least a couple of posts from me from yesterday in the various threads on the ruling speculating that this was a highly negotiated decision requiring effort by Roberts, and that it may not have been far from a 5-4 against Phillips (absent some of the more egregious aspects). So already agreed on that.
Kagan and Breyer want it more or less both ways. Perhaps Kennedy falls into that category, but at least he had the benefit of writing the majority opinion with a few strong words for the left’s war on religion. As I indicated, it was not necessary for Kagan and Breyer to join the majority opinion, all the while producing a concurrence designed to narrow it even a bit further, while providing a roadmap for a win down the road. They could have concurred in the judgment or concurred in part just as well. I consider that disingenuous.